Late Wednesday evening, the Supreme Court, by a vote of five to four, refused to stay the Texas “heartbeat law,” which prohibits abortion in most cases after a fetal heartbeat can be detected. What is remarkable about this decision is that, on the merits, it had almost nothing to do with the constitutionality of abortion; but it will nonetheless quite possibly mark a watershed moment in abortion jurisprudence.
Contrary to what you have likely read on social media, the Supreme Court did not rule that the Heartbeat Law was constitutional. Rather, their decision was based on procedural problems with how the suit was brought. Per the court: “[The plaintiffs] raised serious questions regarding the constitutionality of the Texas law at issue, but their application also presents a complex and novel antecedent procedural questions on which they have not carried their burden.” Chief Justice Roberts argued that they should have stayed the law due to its “unprecedented statutory scheme.” While the liberal justices argued that the Texas law should be enjoined due to, as Justice Sotomayor put it, how blatantly it was “engineered… to evade judicial scrutiny.”
And here she has a point. What makes the Texas Heartbeat Law different from every other heartbeat law is that it allows anyone to sue abortion providers, which means that an injunction would have to apply to all Texas citizens individually. This novel construction made issuing an injunction difficult and legally dubious, which is why the Supreme Court refused to do so. This, of course, was one of the main reasons the law was constructed the way it was.
So now we wait for the court to sort things out on the merits, which will probably not be until someone in Texas actually sues under the law. It will be interesting to see how aggressive private Texans are in using the law, as it will only work if people actually make use of it. It is perfectly possible that, since actually getting an abortion is still technically legal, people could simply get an abortion discreetly, not tell anyone about it, and thereby prevent any enforcement of the law. The likelihood of this dropped, however, when abortion providers announced their intent to cooperate with the law. In the meantime, Texas has gotten its wish, has forced the court’s hand, and has finally achieved, at least for now, a project that has been 50 years in the making.
There is, however, one more issue even supporters of the law ought to consider. 50 years of the Supreme Court creating more and more elaborate ways to avoid either wading deeper into the abortion debate or extracting itself entirely by overturning Roe has led to a fiendishly complex set of precedents and rules surrounding abortion. Texas made a law that, whatever enforcement difficulties it may have, is perfectly designed to make overturning it as difficult as possible. While this tactic was, probably, necessitated by the continued refusal of the Supreme Court to allow abortion law to be determined democratically, this tactic could be used against legitimate constitutional rights in much the same way. Connecticut, for example, has a similar situation where people can sue firearms manufacturers for illegal activity performed with their product, despite the fact that their work is protected by the Second Amendment. It will be interesting to see if more states try to get around Supreme Court rulings by creating laws on the model of those in Texas and Connecticut.
In the meantime, settle in, folks, because there is a long fight ahead of us, and the fireworks have just begun.
